Citation Nr: 9920140
Decision Date: 07/22/99 Archive Date: 07/28/99
DOCKET NO. 96-15 749 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an increased evaluation for recurrent
right lumbar radiculopathy, with low back pain, currently
evaluated as 20 percent disabling.
2. Entitlement to an increased (compensable) evaluation for
a post operative medial meniscectomy of the left knee.
3. Entitlement to an increased (compensable) evaluation for
bursitis of the left shoulder.
4. Entitlement to an increased (compensable) evaluation for
bursitis of the right shoulder.
5. Entitlement to a total disability evaluation based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher Gearin, Associate Counsel
INTRODUCTION
The veteran had active service from June 1969 to July 1987.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri.
In a May 1998 statement, the appellant withdrew his claims
for entitlement to an increased rating for non-Hodgkin's
lymphoma and a right knee disorder.
In an April 1999 hearing before the undersigned Member of the
Board, the veteran indicated that he was going to file a
notice of disagreement with respect to the RO's assignment of
a 10 percent rating for an adjustment disorder with a
depressed mood. Given that this issue is not currently
developed or certified for appellate review, it is referred
to the RO for appropriate consideration.
REMAND
The veteran testified in April 1999 before the undersigned
Member of the Board. Therein his representative contended
that the VA examinations of record did not properly consider
pain and functional impairment pursuant to DeLuca v. Brown, 8
Vet. App. 202 (1995). The Board agrees, and finds that
further development is in order.
In this regard, notwithstanding the now well established
standards set forth in DeLuca, neither the March nor the
October 1996 VA examination report addressed matters of
weakened movement, excess fatigability, incoordination, and
loss of function due to pain on use or during flare-ups, as
required under 38 C.F.R. §§ 4.40 and 4.45 (1998). The United
States Court of Appeals for Veterans Claims (Court) has held
that an examination which fails to consider and address the
provisions of these regulations is inadequate for rating
purposes. The Board further notes that contrary to 38 C.F.R.
19.29(b) (1998), the RO did not inform the veteran of these
regulations while attempting to address the degree of pain
and functional impairment in the July 1996 supplemental
statement of the case. Moreover, while the RO referred to a
prior statement of the case in the July 1996 supplemental
statement of the case, the referenced statement of the case
is not of record. In any event, the RO must issue the
appellant a supplemental statement of the case which includes
a summary of all applicable laws and regulations. Therefore,
additional development is in order.
Additional development is also warranted in light of the
testimony that since the most recent VA examination in
October 1996, the veteran has continued to receive treatment
for his shoulders, low back, and left knee, and that to
relieve the pain in these areas he has been given steroidal
shots and heavy doses of pain relief medication. As the
latest examination report is almost three years old, and as
the reports are not DeLuca compliant further development is
in order.
Appellate review of the TDIU claim is deferred until all of
the veteran's service-connected disabilities have been
reexamined and the claims on appeal are readjudicated.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO should request that the
veteran identify the names, addresses,
and approximate dates of treatment for
all VA and non-VA health care providers
who have treated him since October 1996
for his shoulder, low back, and left knee
disorders. With any necessary
authorization from the veteran, the RO
should attempt to obtain copies of
pertinent treatment records identified
which have not been previously secured.
This development should include securing
records from the Munson Army Hospital at
Leavenworth, Kansas, and the VA Medical
Center in Kansas City.
2. The veteran should be scheduled for
appropriate VA examinations to determine
the nature and extent of all his service-
connected disabilities. In particular,
however, the RO should arrange for the
veteran to be examined by an orthopedist
to determine the nature and severity of
his shoulder, low back, and left knee
disorders. All necessary tests and
studies including X-ray and range of
motion studies must be conducted. Range
of motion should be recorded in numbers
of degrees, and the normal ranges of
motion should be provided. Any portion
of the arc of motion which is painful
should be so designated. The claims
folder and a copy of this remand must be
made available to and reviewed by the
examiner in conjunction with the
examination. The examination report
should be typed.
The examiner should elicit from the
veteran an account how shoulder, low
back, and left knee disorders affect his
daily activities and employability. The
report must include a detailed
description of any disability found to be
present, and the effects of the
disabilities on the veteran's ordinary
activity. The examiner should take into
account all functional impairments,
including pain on use, incoordination,
weakness, fatigability, and abnormal
movements, etc. The examiner must
comment on the extent to which the
disorders result in symptoms of muscle
pain, activity limited by fatigue, or
inability to move the joint through a
portion of its range. An opinion should
also be provided as to the degree to
which each disorder interferes with the
appellant's ability to work.
If the veteran describes flare-ups of
pain, the examiner must offer an opinion
as to whether there would be additional
limits on functional ability during
flare-ups, and if feasible, express this
in terms of additional degrees of
limitation of motion during the flare-
ups. If the examiner is unable to offer
an opinion as to the nature and extent of
any additional disability during a flare-
up that fact should be so stated.
3. After the development requested has
been completed, the RO should review the
examination report to ensure that it is
in complete compliance with the
directives of this REMAND. If the report
is deficient in any manner, the RO must
implement corrective procedures at once.
4. Thereafter, the RO should
readjudicate the issues of entitlement to
increased evaluations for the issues on
appeal as well as the issue of
entitlement to TDIU. The readjudication
of the claims must be within the
analytical framework provided by the
Court in DeLuca. Should the left knee
involve instability and arthritis a
determination must be made as to whether
a separate rating is in order in light of
the General Counsel's holding in
VAOPGCPREC 23-97; 62 Fed.Reg. 63604
(1997).
5. The veteran is hereby notified that
he must perfect an appeal with respect to
any new issue adjudicated by the RO that
is not before the Board at this time if
he wishes to have that issue reviewed at
the appellate level.
6. If the veteran's claims are not
granted, then he and his representative
should be issued a supplemental statement
of the case, informing them of all
appropriate laws and regulations, as well
as the Court's decision in DeLuca, with
application of 38 C.F.R. §§ 4.40 and
4.45. They should then be given an
opportunity to respond. The case should
then be returned to the Board for further
appellate consideration.
The veteran need take no action until otherwise notified, but
he and/or his representative may furnish additional evidence
and argument while the case is in remand status. Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992).
DEREK R. BROWN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).